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Renewed Debate On Abolition Of Death Penalty

Posted: Jul 9, 2015 at 2:56 am   /   by   /   comments (0)

For many years, the issue of death penalty moratorium as well as its total abolition has become one of the topical issues the world over. But while more countries are joining 96 others in seeing the reason why the death penalty should be outlawed for all crimes, Nigeria remains part of 59 nations where the death sentence continues to be part of its laws. As the debate on its abolition is now been renewed, ADAM ADEDIMEJI examines the efficacy of death sentence as a penal verdict and rights’ group’s positions in moving Nigeria towards its eradication.

The right to life is sacrosanct. Section 33 of the 1999 Constitution of the Federal Republic of Nigeria affirms the individual’s right to life. This section also provides for four specific circumstances under which this right may be restricted. These exceptions arise among others, where a court imposes a death penalty on a person for presiding at an unlawful trial that gives rise to wrongful death, and where force “as is reasonably necessary “has been used. 

Other exceptions included where a person is killed in the course of defending another person against unlawful violence; during attempt to effect a lawful arrest or prevent the escape of a person lawfully detained; or during the process of suppressing a riot, insurrection or mutiny.

In the same manner, section 45 of the constitution equally provides for the derogation of any of the fundamental rights. These constitutional provisions appear to be in pari material with Section 306 of the Criminal Code (CC), Cap 77 Laws of the Federation 1990, which states that, “it is unlawful to kill any person unless such killing is authorized or justified or excused by law.”

Interestingly, history has proved that human beings are infallible. Thus, the argument which supports the view that the right to life and the right to human dignity can be derogated from as provided under section 45 of the constitution stands assailable in so many respects.

It suffices to say that in most developing countries including Nigeria, there is hardly any justification for the violation of these rights on the basis of such derogation since the imperative of necessity arising from a clear and present danger such as defence of the state during a war, riot, insurrection or mutiny and the prevention of the escape of a person from a lawful arrest or detention rarely ever exist in the recorded cases of extra-judicial killings, disappearances, or assassination as was the situation with the right to life.

The Committee for the Defence of Human Rights (CDHR) in an Annual Report on the human rights situation in Nigeria points out that “whereas at the end of 1989, the death penalty has been abolished as punishment for all crimes in 35 countries, for ordinary crime in 18 countries, it is still retained and used in 101 countries including Nigeria where the Supreme Court at the end of 1998 upheld it when it reiterated the constitutionality of death penalty in the celebrated case of Onuoha Kalu-v-State (1990) 13 NWLR (Pt 538) 531.”

The group noted that by 1995, the South African Constitutional Court had unanimously ruled that death penalty violated the country’s constitution.

In 2010, the Nigerian Senate’s Joint Committee on Terrorism proposed the maximum penalty for anyone found guilty of engaging in terrorist acts as against five years imprisonment recommended in the bill for an Act to provide measures to combat terrorism pending before the National Assembly.

The Senate Joint Committee made the proposal just as the African Commission on Human and Peoples’ Rights asked the Federal Government to stay action on the impending execution of more than 800 prisoners on death row across the country until the determination of a communication brought by the Socio-Economic Rights and Accountability Project (SERAP).

SERAP had petitioned the communication saying the “government’s only justification for executing the prisoners was to address prison congestion.” But the then Chairman of the Committee, Senator Nuhu Aliyu, had said at a public hearing of the bill on Anti-Terrorism that the commission had considered that any act of killing was contrary to the constitution and should therefore attract other forms of capital punishment.

Among that group who continues to express concern over Nigeria’s recalcitrance over death penalty in the country is the HURILAWS, the Human Right Law Service who often called for the massive reform in the administration of criminal justice sector. Another group is the Legal Defence and Assistance Project LEDAP, a non-governmental organisation and a leading human right group.

The two leading human right groups have consistently been in the vanguard of agitation for moratorium or abolition of death penalty over the years.

At a recent one-day roundtable organised by LEDAP in Lagos tagged “Moving Nigeria towards the abolition of death penalty,” the issue of whether or not death sentence, as punishment for murder, armed robbery and other heinous crimes, should be expunged from the Nigerian laws again came to the fore.

The Civil Society Group at the event held on June 25, disclosed it has realised that there is a high likelihood of wrongful conviction stemming from poor investigation by the Nigeria Police Force and the imperfection of the Nigerian criminal justice administration.

The group has therefore moved the Appeal Court and the Supreme Court to reverse the death sentence passed on a number of condemned criminals.

Its national coordinator, Mr. Chino Obiagwu, said the law is settled on the principle that it is better to set a hundred criminals free than to wrongfully convict and kill one innocent person. He argued that it would be unjust to retain death penalty in the face of such imperfection in the Nigerian criminal justice administration.

“There are more than 600 Nigerians facing death penalty in foreign countries. The question is: what is the Nigerian government doing as regards the process through which they got to that stage? But let us ask ourselves, how many foreigners have faced death penalty in Nigeria? And the answer is, only one.

There was only one Briton who was sentenced to death in 2007; he was charged for killing his mistress and sentenced to death. But there was a prison swap arrangement between Nigeria and Britain and the man is no longer in Nigeria. At the moment there is no foreigner facing death penalty in Nigeria. And the number of foreigners serving jail terms in Nigeria is less than 12,” Obiagwu said.

Obiagwu also pointed out the apathy of the federal government of Nigeria to the plights of its citizens facing death penalty in foreign countries. According to LEDAP, there are no fewer than 600 Nigerians who are currently facing trial or have been convicted and serving jail terms in different parts of the world.

It is the conclusion of LEDAP that the Nigerian government has not done much in the area of trans-border criminal management. It identified failure in the country’s compliance with the Vienna Convention on Consular Rights Services to which Nigeria is a signatory.

According to LEDAP, no fewer than 12 states in Northern Nigeria use the Sharia law, which prescribes death penalty for apostasy, incest, rape, Liwat (homosexual sodomy) and Zina (adultery). The states include Bauchi, Borno, Gombe, Jigawa, Kaduna, Kano, Katsina, Kebbi, Niger, Sokoto, Yobe and Zamfara.

For those who favour the use death penalty, anyone who has willfully killed, especially terrorists, simply deserves not to live. According to them, applying the death penalty on such people will completely foreclose the possibility of their wrecking more havoc on the society in the event that they were pardoned and released. Killing heinous criminal will also serve as deterrence for others who may want to toe the same path, they argued. And in opposition to those who want death penalty to be commuted to life imprisonment, the protagonists of death penalty have also argued that keeping condemned criminals in prison will constitute a drain in the public pulse, because, according to them, these condemned criminals are people that have been written off as those who cannot meaningfully contribute to the advancement of the society.

LEDAP, in one of its published research works, noted that while 96 countries around the world have outlawed the use of death penalty, Nigeria is one of the 59 others which have yet to do so. The organisation, however, said that in a survey it conducted in 2010 across the 36 states of Nigeria and the Federal Capital Territory, it realised that fifty one per cent of Nigerians captured in its survey favoured the abolition of death sentence as opposed to fourty two per cent which wanted it retained.

“The findings in this survey, especially among young Nigerians interviewed, demonstrated the impact of emerging opinions across the world that death penalty and all other forms of corporal punishments that degrade the dignity of the human person are not permissible in modern society. Nigeria should stand with modern democratic states that have abolished or drastically restricted the use of death sentence,” the organisation said.

To this end, LEDAP has disclosed its readiness to engage the National Assembly and President Muhammadu Buhari-led administration on the need to have an official moratorium on death penalty and to eventually outlaw it.

When Daily Independent sought the views of some lawyers on the issue, majority of them favoured abrogation of death penalty from the country’s statutes.

Mr. Emeka Opara says “I think death penalty as a criminal punishment is now outdated.

We are no longer in the uncivilized era. We are in the modern age. The developed world is moving towards the abrogation of death penalty and we have to join the rest of the world. We have discovered that capital punishment has not solved the issue of crime.

It does not deter the commission of heinous crimes and this shows the problem we have in our society.

Even though the offender has to suffer from the law, the declaration of liberty of the offender is equally important. Hence, I think death penalty should not be a necessary deterrent to the commission of terrorist acts.”

Mr. Stephen Faworaye says ‘’Death penalty can never solve the problem of terrorism in the society. Personally, I think other forms of punishment like life sentence is preferable. All over the world, countries and governments are doing away with death penalty. It is outdated and no longer in vogue. So, I disagree with the proposal of the Senate Joint Committee on Terrorism that death penalty should be adopted. You will even discover that some State Governors in the country are reluctant to sign the warrant of execution of many of the convicts on death row. ”

Mr. Adebisi Adeyemi agrees that “death penalty should be abolished and it should not be adopted as a form of punishment against perpetrators of terrorist acts. It has been abolished in all countries and we cannot afford to be retrogressive.  I think that in order move along with the rest of the world, we should be mindful of the fact that the proposal of the Senate committee is not a popular one.

Death penalty is very primitive and crude; we should remove it from our criminal jurisprudence. To take life is a sacrilege. We should not embrace it because it is an anachronistic system and I want to add that destroying life is ungodly. It is inhuman to terminate human existence by killing.”

Opposing the retention of the punishment, Friday Oshomagbe said “honestly speaking I do not support such move. The reason being that in as far as I condemned the act of terrorism, but I do not believe that death penalty will be the solution.  The solution has to do with creativity of means of livelihood. If you loot at the Constitution, everyone has a right to life even though with some specific exceptions. You will also notice that people who commit heinous crimes these days are no longer based on capital punishment. They are either remanded in custody as a life punishment or rehabilitated, so as to find a way of turning their heart from that tendency of criminality to a purposeful life. So I won’t support it. We have not gotten to a stage where the act of terrorism has become a threat to Nigeria; our lawmakers should be concerned with making non-provision of livelihood for Nigerians as a criminal act by our leaders.

If   a governor failed to provide food and jobs for the citizens that should be criminalized.

In support of the move, Sunday Onu, former Secretary NBA, Lagos branch said “the law of the country recognizes and acknowledges and prescribes death penalty in certain respects. Death penalty is not alien to the laws of the country. So, it is within the confines of our Criminal Laws. Now, on the jurisprudential plane, we should look at what terrorism is and its immediate effect on the country. One that readily strikes the mind on a global picture is the September 11 disaster in America that brought down the twin-tower and hundreds of people died. So, I see nothing repugnant applying death penalty in respect of acts consciously done by any person to eliminate the life of another.

So far, it would appear that the popular saying is the call for the abrogation of death penalty and the commutation of all extant death sentences. From ecclesiastical point of view, human life is sacred and no human institution has been able to bestow this gift on humanity.

The deterrent effect of death penalty being canvassed in the criminal justice system as a justification clearly lacks the cogency that seek to validate the killing of people in situations posed by riot or war, insurrection or mutiny.

It is hardly ever established with any empirical exactitude that such murderous act ever deters people compelled by the force of survival to desist from criminal activities.

What is to be an efficacious check of crime, especially terrorist acts by the state is for the government at all levels to provide mass employment, improved living standards; prioritization of the country’s values system and the guarantee of social services and amenities by the state.